United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE
THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT
matter is on referral to the undersigned pursuant to Rules
72.1 and 72.2 of the Local Rules of Civil Procedure for
further proceedings and a report and recommendation (Docs. 8,
March 29, 2017, Petitioner filed a pro se Petition for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1).
The Court required an answer to the Petition (Doc. 8), which
was filed on October 26, 2017 (Doc. 13). On December 29,
2017, the Court extended to March 2, 2018, the time for
Petitioner to file a Reply in support of his Petition for
Writ of Habeas Corpus (Doc. 19). No. reply has been filed to
date. Before the filing deadline for the reply, on January 9,
2018, Petitioner filed a Motion to Retract or Stay His Habeas
Corpus (Doc. 20). The Court ordered a response (Doc. 21),
which was timely filed on February 5, 2018 (Doc. 22). The
motion (Doc. 20) is ripe for the Court's decision.
Petitioner sent to undersigned a letter stating that, with
regard to his Petition for Habeas Corpus Pursuant to 28
U.S.C. Section 2254, “I give up my fight[.] I don't
have the know how or means to go on.” The Clerk of
Court docketed this letter on February 12, 2018 (Doc. 23).
The Court construed the letter as a motion to dismiss his
habeas petition (Doc. 25). Respondents Charles Ryan and the
Arizona Attorney General filed a Notice to the Court (Doc.
24), bringing to the Court's attention a similar letter
the Attorney General received from Mr. Swan containing
verbatim the same language referenced above in the letter to
undersigned. The Court ordered a response from Respondents
(Doc. 25). Respondents timely filed a response (Doc. 26). The
motion to dismiss (Doc. 23) is ripe for the Court's
is pro se. Petitioner filed a motion to appoint counsel on
December 11, 2017 (Doc. 16), which was denied on December 13,
2017 (Doc. 17) (“Petitioner has not made the necessary
showing for appointment of counsel at this time. The Court
will deny without prejudice the Motion to Appoint Counsel.
If, at a later date, the Court determines that an evidentiary
hearing is required, counsel will be appointed in accordance
with Rule 8(c) of the Rules Governing Section 2254
motion (Doc. 20), Petitioner does not sufficiently explain
his reasons for requesting a stay of these proceedings. He
states that he wants to “amend his Rule 32” (in
other words, he wishes to amend his state court
post-conviction petition) (Doc. 20 at p. 2). Yet, the Court
agrees with Respondent that all of Petitioner's habeas
claims appear to be actually or technically exhausted in the
state court. Thus, this is not a case for the Rhines v.
Weber, 544 U.S. 269 (2005), stay-and-abey procedure.
“[R]outinely granting stays would undermine the
AEDPA's goals of encouraging finality and streamlining
federal habeas proceedings, ” Blake v. Baker,
745 F.3d 977, 981-82 (9th Cir. 2014) (citing Rhines,
544 U.S. at 277); see also Jackson v. Roe, 425 F.3d
654, 661 (9th Cir. 2005). Petitioner has not shown that a
stay is appropriate in this matter.
as Petitioner's motion and letter (Docs. 20 and 23)
constitute a motion to dismiss his habeas petition without
prejudice, Respondents explain that such a dismissal will
result in a time-bar preventing this Court from considering
the merits of Grounds 2 and 3 in a subsequent petition,
see Duncan v. Walker, 533 U.S. 167, 180-81 (2001)
(stating that there is no tolling under § 2244(d)(2) for
the time during which a federal petition that was dismissed
without prejudice was pending). Accordingly, a request to
dismiss [Swan's] petition without prejudice would not
serve Swan's interests and should be denied” (Doc.
22 at p. 3).
oppose the motion to dismiss (Doc. 23) stating that
“while courts must liberally construe claims raised by
a habeas petitioner, Laws v. Lamarque, 351 F.3d 919,
924 (9th Cir. 2003), pleadings filed by a petitioner should
not be construed in a manner that would prejudice the
petitioner, see Emanuel v. Neven, 2017 WL 6614096,
at *5 (D. Nev. Dec. 27, 2017) (‘The Court otherwise is
not inclined to liberally construe the pleading also as a
motion for leave given that such a purportedly liberal
construction potentially could operate to prejudice
petitioner's interests . . . .')” (Doc. 26 at
p. 2). Here, dismissal without prejudice would appear to
cause Swan's interests to be prejudiced because a later
refiling of his habeas petition would likely subject Swan to
a time-bar. This would result in the Court not having the
opportunity to consider any of Swan's claims on the
merits. Thus, the motion to dismiss should be denied.
extent that Petitioner is requesting the Court to reconsider
its previous denial of his request to have counsel appointed
(Docs. 16, 17), the request to reconsider is not well taken.
Motions to reconsider are granted only if the movant makes a
showing of manifest error, new facts, or new legal authority.
LRCiv. 7.2(g). These motions should not be used for the
purpose of asking a court “to rethink what the court
had already thought through-rightly or wrongly.”
Defenders of Wildlife v. Browner, 909 F.Supp. 1342,
1351 (D. Ariz. 1995) (internal quotation marks omitted).
Petitioner fails to satisfy LRCiv. 7.2(g).
IT IS RECOMMENDED that Petitioner's
motions (Docs. 20, 23) be denied.
IS FURTHER RECOMMENDED that Petitioner be permitted
to file a Reply in support of his habeas petition
within 28 days of this Report and
Recommendation if no ...